May 8, 2019
Below: Superior Court of the State of Delaware, C.A. No.
appeal from the Superior Court. AFFIRMED.
Klusman, Esquire (Argued), and Kenneth L. Wan, Esquire,
Tybout Redfearn & Pell, Wilmington, Delaware, for Appellant,
State of Delaware.
Schmittinger, Esquire (Argued), and Candace E. Holmes,
Esquire, Schmittinger and Rodriguez, P.A., Dover, Delaware,
for Appellee, Nicholas Gates.
VALIHURA, VAUGHN, and SEITZ, Justices.
State of Delaware appeals from an order of the Superior Court
that affirmed a determination by the Industrial Accident
Board (the Board) that Nicholas Gates was working within the
course and scope of his employment when he was injured in a
motor vehicle collision. At the time of the collision, Gates
was employed by the State as a road-maintenance equipment
operator for the Department of Transportation (DelDOT). The
collision occurred while he
was responding to a "call-back" after his normal
work hours. He was called back to attend to a road-side
accident. In other words, he had completed his normal shift
for the day and left for home, but was called back to perform
whatever road maintenance might be necessary as a result of
the road-side accident. As was common practice with
call-backs, he was to proceed first to the DelDOT yard to get
equipment and to then continue on to the road-side accident
site. His collision occurred while he was on his way to the
sought workers compensation benefits from the State for his
injury. At the hearing before the Board, the State argued
that State of Delaware Merit Rule 4.16 and a document
titled "Call-Back Pay Guidelines and Recommended
Procedure" (the Call-Back Pay Guidelines) were part of
Gatess employment contract. It further argued that according
to these provisions, Gates was not to be paid for a call-back
until he arrived at the DelDOT yard. Because Gatess
collision occurred before he arrived at the yard, the State
argued, his injury occurred outside the course and scope of
his employment and was, therefore, not compensable under
Delawares Workers Compensation Act (the Act). The Board
looked to the parties prior course of conduct to determine
the terms of the employment contract and found that Gatess